Submitted on Briefs: January 17, 2018
FROM: Montana Water Court, Cause No. 40M-129, Honorable
Douglas Ritter, Water Judge
Appellants: Ron Korman (Self-Represented), Maxine Korman
(Self-Represented), Hinsdale, Montana
Appellee: Edward A. Amestoy, Cole Amestoy & O'Brien,
McGrath Chief Justice.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Ron Korman and Maxine Korman (Kormans) appeal from an August
17, 2017 Water Court order granting claimant's motion for
summary judgment and dismissing the Kormans's stockwater
right objection. We affirm.
The record shows that there is a small reservoir for watering
livestock located on an unnamed tributary of Larb Creek in
Valley County. The reservoir first came into use in 1938.
Salsbery Family Partnership (Salsbery) purchased the property
with the reservoir in place and currently owns the property
where the reservoir is located. In 1977, the Kormans and
Salsbery entered into a grazing agreement that allowed the
Kormans to graze livestock on the property where the
reservoir is located.
Salsbery filed a claim for a stockwater right. Salsbery
asserted it acquired the reservoir and water right when it
purchased the property and continue to own it as an
appurtenance to the property. The Kormans filed an objection
arguing the Kormans's livestock had used the reservoir
water while Salsbery livestock had not, and therefore the
Kormans are the actual owner of the water right. Both parties
filed motions for summary judgment.
The Water Court determined that the Kormans did not acquire
the right because of their livestock use, and that the
Kormans failed to provide evidence that the 1977 grazing
agreement conveyed any water rights.
We apply the same standards of review to the Water Court as
we do to an appeal from a district court. Mont. Trout
Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶
16, 361 Mont. 77, 255 P.3d 179. This Court reviews the Water
Court's conclusions of law de novo to determine whether
they are correct. Scott Ranch, Ltd. Liab. Co., 2017
MT 230, ¶ 10, 388 Mont. 509, 402 P.3d 1207 (citing
In re Crow Water Compact, 2015 MT 217, ¶ 19,
380 Mont. 168, 354 P.3d 1217). Therefore, we will review the
Water Court's grant and denial of the competing motions
for summary judgment de novo, applying the same criteria of
M. R. Civ. P. 56.
A claim of an existing right constitutes prima facie proof of
its content. Section 85-2-227(1), MCA. The effect of the
statute is to place the burden of proof on the objector to
prove by a preponderance of the evidence that the elements of
the original claim do not accurately reflect the beneficial
use of the water right as it existed prior to July 1, 1973.
Marks v. 71 Ranch, LP, 2014 MT 250, ¶ 15, 376
Mont. 340, 334 P.3d 373 (citing Nelson v. Brooks,
2014 MT 120, ¶ 37, 375 Mont. 86, 329 P.3d 558).
The Kormans admit their first use of the reservoir was in
1977. They contend the 1977 agreement severed the water
rights from land ownership and conveyed those rights to the
party grazing cattle. The water right was historically
appurtenant to Salsbery property. Appurtenant water rights
pass with a conveyance of the land, unless specifically
exempted in that transfer. Section 85-2-403(1), MCA;
Castillo v. Kunnemann, 197 Mont. 190, 200,
642 P.2d 1019, 1026 (1982). Without a clearly expressed
reservation of the water right, it remains appurtenant to the
land. Yellowstone Valley Co. v. Associated Mortg.
Investors, 88 Mont. 73, 81-82, 290 P. 255, 258 (1930).
The 1977 grazing agreement was not provided to the Water
Court or this Court. As the Kormans failed to show express
language granting the water right, it remains appurtenant to
the Salsbery land. The Water Court did not err.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the Water ...